Strategies To Maintain TN Work Authorization During The AOS Green Card Process
TN visa workers married to U.S. citizens may be eligible to apply for U.S. lawful permanent residence (green card). Compared to other green card options, marriage to a U.S. citizen offers one of the “fastest” paths to U.S. lawful permanent residence.
Because these individuals have current immigration status in the U.S., TN visa workers may process for their green card by applying for Adjustment of Status (AOS) instead of through Immigrant Visa Processing. Historically, the AOS process was the faster of these 2 options - although delays due to the pandemic have slowed the AOS process down - and AOS has the added benefit of being able to obtain open market work authorization (EAD) as part of the process.
However, one of the challenges for TN visa workers filing for AOS is to ensure continued employment authorization. Once a TN visa worker files an AOS application, it can be very difficult to obtain a renewal/extension of that TN status. They cannot depart the U.S. to apply for a TN visa at the consulate (Mexican) or for TN status at the border (Canadian), because departing the U.S. before obtaining their Advance Parole travel authorization will result in the denial of the AOS application. Additionally, the filing of an AOS application is a significant sign of immigrant intent, and will often be considered contrary to the temporary entry requirements for TN visa status. If the applicant does not receive their EAD or green card before their TN work authorization expires, they will face a gap in work authorization.
The following are some strategies to help ensure a TN visa worker has the ability to continue working during the AOS process:
Start the AOS process with as much time remaining on the 3-year TN approval period as possible.
File the AOS application along with its supplemental applications including an I-765 application for an Employment Authorization Document (EAD) at least 1 year prior to the expiration of the TN work authorization. Due to delays caused by the pandemic, I-765 applications are taking anywhere from 6-12 months to be adjudicated. (Pre-pandemic I-765 applications were processed in around 3 months.)
If a TN visa worker has already filed an AOS application, and their TN I-94 will expire soon and they have not yet received their EAD, they can try requesting expedited processing of their EAD application. To expedite the EAD application, USCIS will generally require evidence that the employer or applicant will suffer “severe financial loss” unless the EAD application is expedited.
As a last resort, the TN visa worker’s employer can consider filing an I-129 petition to extend the worker’s TN status by mail. The mere filing of the I-129 petition prior to the expiration of the TN worker’s I-94 record will provide the individual with an additional 240 days work authorization. However, there is a high chance that this I-129 petition will be ultimately denied by USCIS due to immigrant intent evidenced by the pending AOS application.